Kissinger v. Board of Trustees of Ohio State University, College of Veterinary Medicine

• Decision Date: 23 September 1993
• Docket Number: No. 92-3360,92-3360
• Citation: 5 F.3d 177
• Parties: 85 Ed. Law Rep. 999 Jennifer KISSINGER, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the OHIO STATE UNIVERSITY, COLLEGE of VETERINARY MEDICINE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 177

5 F.3d 177

85 Ed. Law Rep. 999

Jennifer KISSINGER, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the OHIO STATE UNIVERSITY, COLLEGE of VETERINARY MEDICINE, et al., Defendants-Appellees.

No. 92-3360.

United States Court of Appeals Sixth Circuit.

Argued Nov. 16, 1992.

Decided Sept. 23, 1993.

Kathaleen B. Schulte (argued), Spater, Gittes, Schulte & Kolman, Columbus, OH, Gary L. Francione (briefed), Rutgers University Law School, Newark, NJ, for plaintiff-appellant.

James E. Pohlman (briefed), Kathleen M. Trafford (argued), Porter, Wright, Morris & Arthur, Columbus, OH, for defendants-appellees.

Before: KENNEDY, MARTIN, and SUHRHEINRICH, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Jennifer Kissinger appeals the district court's refusal to award attorneys' fees under 42 U.S.C. Sec. 1988. She sued Ohio State University to force a change in its veterinary-medicine curriculum, but the parties reached a settlement. We affirm the district court's refusal to award attorneys' fees because Ohio State was not required by federal law to alter its curriculum to accommodate Kissinger's religious beliefs.

Jennifer Kissinger enrolled in the College of Veterinary Medicine at Ohio State University. When she was admitted, the Admission Acceptance Form stated,

The faculty of the College of Veterinary Medicine believe that the use of live animals in the teaching program is essential. The use of animals is reviewed by a faculty committee, which considers the issues of humane treatment, animal rights, learning experience and achievement of educational objectives. Objection to the use of live animals will not be grounds for excuse from class.

During the second year of her training, Kissinger requested that the College allow her to take an alternate program to the College's required course in veterinary surgery, Operative Practice and Techniques, a third-year course. Operative Practice is a course for the study of veterinary surgical techniques in which, among other learning activities, healthy animals are anesthetized, operated upon, and then killed. On May 5, 1990, Kissinger, because of her religious beliefs, asked the faculty to create an alternative curriculum for her to fulfill the surgical requirement. On June 27, 1990, Kissinger was told that a committee had been established to develop an alternative to Operative Practice.

On August 29, 1990, having heard nothing from the College about the alternate curriculum, Kissinger requested that the curriculum be modified to accommodate her religious beliefs. The College refused Kissinger's request. Kissinger enrolled in her third-year classes, but refused to participate in the laboratory portion of Operative Practice. On October 6, 1990, the College told Kissinger that she could withdraw from Operative Practice, which meant that she could not continue with subsequent courses and that she would be required to petition for readmission to the College.

Kissinger contends that she was ridiculed by the faculty and told not to "make waves" during the course of her efforts to be allowed to take an alternative curriculum.

Kissinger sued the College. Her lengthy complaint stated fifteen grounds for relief, including state common-law theories, state constitutional theories, and seven claims under 42 U.S.C. Sec. 1983. Kissinger claimed that the College violated her rights under the United States Constitution, including her freedom of speech, freedom of association, freedom of religion, and her rights to due process and equal protection. In addition, Kissinger claimed that the College violated her statutory right to privacy concerning her academic records under 20 U.S.C. Sec. 1232g.

On January 24, 1991, the College issued an alternative curriculum for Kissinger. Kissinger objected to parts of the alternative curriculum, but a settlement was eventually reached. Kissinger then petitioned for attorney's fees under 42 U.S.C. Sec. 1988, and the district court rejected Kissinger's petition. We affirm the district court's decision.

Under 42 U.S.C. Sec. 1988, district courts have the discretion to award attorneys' fees to a "prevailing party" in a suit arising under 42 U.S.C. Sec. 1983. Although the statute states that the award of attorneys' fees is discretionary, they should normally be granted if a plaintiff prevails. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). When a plaintiff files suit under section 1983 and reaches a settlement with the defendant, the plaintiff may be entitled to attorneys' fees as a prevailing party. Johnston v. Jago, 691 F.2d 283, 286 (6th Cir.1982). For a party to a settlement to be considered a prevailing party, the party must: (1) receive the redress as a result of having filed suit, and (2) be legally entitled to the redress. Id.

On appeal, Kissinger based her argument for attorneys' fees solely on the contention that Ohio State violated her right to exercise freely her religion. Therefore, though she alleged numerous other statutory and constitutional bases for relief in her complaint, we will address only the arguments she presents on appeal.

Ohio State's curriculum did not violate Kissinger's right to exercise freely her religion. We base this conclusion primarily on the Supreme Court's reasoning in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith, even though concerned with a criminal statute, is applicable to cases involving educational requirements. Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927, 932 (6th Cir.1991). In Smith, the Court upheld the State of Washington's ban on the use of peyote, a hallucinogen, despite Smith's claim that he needed peyote to exercise freely his religion. The Court reasoned that Washington's statute was generally applicable, was not aimed at particular religious practices, and did not contain a system of particularized exemptions. Smith, 494 U.S. at 877-78, 884, 110 S.Ct. at 1599-1600, 1603. We employ this three-part analysis to Kissinger's claim that Ohio State violated her right to exercise freely her religion.

Ohio State's curriculum was generally applicable. On this record, no evidence exists that any student was allowed to graduate without having taken Operative Practices and Techniques. The only exception to the College's requirement that all students pass Operative Practices and Techniques is Kissinger herself, and the College only modified its curriculum for her in the face of this lawsuit. Therefore, during the time that the College curriculum required Kissinger to take Operative Practices and Techniques, it was generally applicable to all students.

Ohio State's curriculum was not intended to prohibit any particular religious practice or belief. The record contains no evidence that Ohio State used its curriculum to attack or exclude any individual on the basis of his or her...